Brady J.S. v. Darla A.B.
| Decision Date | 04 August 2022 |
| Docket Number | 493,CAF 21-00093 |
| Parties | In the Matter of BRADY J.S., Petitioner-Respondent, v. DARLA A.B., Timothy B., Respondents, and Jeanette W.B., Respondent-Appellant. In the Matter of Darla A.B. and Timothy B., Petitioners-Respondents, v. Brady J.S., Respondent-Respondent, and Jeanette W.B., Respondent-Appellant. Paul B. Watkins, Esq., Attorney for the Child, Appellant. |
| Court | New York Supreme Court — Appellate Division |
208 A.D.3d 1023
173 N.Y.S.3d 91
In the Matter of BRADY J.S., Petitioner-Respondent,
v.
DARLA A.B., Timothy B., Respondents,
and
Jeanette W.B., Respondent-Appellant.
In the Matter of Darla A.B. and Timothy B., Petitioners-Respondents,
v.
Brady J.S., Respondent-Respondent,
and
Jeanette W.B., Respondent-Appellant.
Paul B. Watkins, Esq., Attorney for the Child, Appellant.
493
CAF 21-00093
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: August 4, 2022
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR RESPONDENT-APPELLANT.
PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-RESPONDENT AND RESPONDENT-RESPONDENT BRADY J.S.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent-respondent mother and the Attorney
for the Child (AFC) appeal from an order that, among other things, determined that petitioner-respondent father established a change in circumstances and granted the mother, respondents-petitioners maternal grandparents (grandparents), and the father joint legal custody of the subject child, assigned the grandparents and the father various "zones of influence," and awarded the grandparents and the father shared physical residence, with the child splitting her time equally between the two residences.
It is undisputed that the father, at the age of 20, began a sexual relationship with the mother when she was only 15 and that the child was born when the mother was 17. At the time of the child's birth, the father was in jail on a petit larceny conviction. The father was released shortly after the child was born and was thereafter convicted upon a plea of guilty of rape in the third degree for having sexual intercourse with the mother before she turned 17 ( Penal Law § 130.25 [2] ). Although the father was originally sentenced to 10 years of probation, he was resentenced to two years in prison after he violated the terms of his probation in an incident involving the mother. During his incarceration, the father entered into a consent order (2009 order) awarding the mother custody of the child.
Following his release from prison, the father filed a petition seeking modification of the 2009 order, and the grandparents thereafter filed a custody petition. Ultimately, the father, the mother, and the grandparents agreed that the mother and the grandparents would have joint custody of the child, with the grandparents having primary physical residence. A consent order to that effect was entered in 2013 (2013 order) pursuant to which the father's visitation was to "increase in time and frequency" and to transition to unsupervised visitation over the course of the calendar year.
In 2015, after the father secured gainful employment, purchased a home, and began to maintain a sober lifestyle, he petitioned for custody of the child, noting that the grandparents had not abided by the provisions of the 2013 order concerning increased, unsupervised visitation. He later amended the petition to seek the alternative relief of increased visitation with the child. Relying on the father's past conviction regarding the statutory rape of their daughter, the grandparents refused to provide any increase in visitation to the father, whom they referred to as "a convicted rapist and a level one pedophile sex offender." Nevertheless, the AFC at the time stated that the child "was very happy and comfortable...
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